Tyrants in the Trademark Office

So how surprised were you to see the name Adolf Hitler trending among frequently searched business terms this week? It seems that a Swiss company’s use of this brand for coffee has raised quite a furor. With one of the year’s really hot trademark topics among the public being the Washington “Redskins” brand, we naturally have to think about how “Adolf Hitler” would fare in the Trademark Office. I think it’s a bit curious that the names “Hitler” or “Adolf Hitler” have never been registered in the U.S. Patent and Trademark Office. The handful of attempts have typically used Hitler in a factual sense, such as for books or movies where Hitler or The Third Reich are the subjects. About 10 years ago, someone filed to register the name “Rosie Hitler,” also for entertainment properties, but this application was never completed, and the reasons why are not clear.

Reports say that the objections to coffee creamers with Hitler’s portrait were sparked by a traveling German businessman in Switzerland. There are obvious historical sensitivities in both countries to the Nazi era. It may be safe, for instance, to assume that Mel Brooks’ production number of “Springtime for Hitler in Germany” from his 1983 film, To Be Or Not To Be, would not get the same reaction in those countries as it received (at least on the whole) from American audiences. (We also learn as a result of this that creamer lids are considered collectibles in Switzerland.)

What would be more scandalous? Preventing registration of the name “Adolf Hitler,” or restriction of the “Redskins” name? Someone tried to register “Mussolini Couture Jeans” about a decade ago. That was refused, but seemingly for formalistic reasons not having to do with connotations of the nameMussolini. Standard Trademark Office practice would also give the Trademark Office the ability to refuse registration to “Mussolini” on the grounds that it is primarily merely a surname. Surname refusals are a bit tricky. They generally have to be supported by at least some evidence that a mark is viewed as a surname because it’s well known as a surname, or has surname-like traits (think MC-prefix names often associated with Irish surnames, or maybe even the “i” suffix for Italian surnames). “Hitler” could face that problem as well. There are at least some families in the United States with the Hitler surname.

A couple of years ago, a Virginia resident filed to register “Stalin Cookies! Cookies That Rule!” The Trademark Office allowed that application. It would appear that the owner never made use of the mark and the application eventually died.

Want to look back at ancient history? “Genghis Khan” is a registered trademark for beer, alcoholic beverages, and, oh, skateboards. Not to mention it has been the subject of applications for camel hair horse blankets. The Trademark Office sees no scandal in registering this historical name. The Trademark Office merely asked that the applicant state: “Genghis Khan” is the title of the Mongol emperor Temujin. The English translation of “Khan” in the mark is “king,” “emperor,” or “ruler.” Historical sources (okay, Wikipedia) state that the Genghis Khan dynasty was accompanied by wholesale massacres of civilian populations.

Though it’s not clear who would want to buy “Attila the Hun” fruit preserves and hot sauce, the Trademark Office registered that mark in 2001, and then of course there were “Attila and the Huns,” a singing group which sought to register its mark for performances and related CDs.

It was important to the Redskins case that the Trademark Trial and Appeal Board found “Redskins” to be a disparaging term, according to the evidence presented. The prohibition on disparaging terms is not the only basis for which trademark registration must be refused. A mark which “consists of or comprises immoral, deceptive, or scandalous matter” cannot be registered. Nor can a mark “which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” But if you think “Caligula” brand washcloths is your ticket to success, the Trademark Office will not disagree with you. (But you wouldn’t be the first. At least a dozen people have already filed to register “Caligula” in the past.)